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Low Age Of Rape Victim Is Not Considered As The Only Or Sufficient Factor To Impose Death Sentence: SC

 

In a very significant development pertaining to imposition of death penalty, the Apex Court has in an extremely commendable, cogent, courageous, composed and convincing judgment titled Irappa Siddappa Murgannavar vs State of Karnataka in Criminal Appeal Nos. 1473-1474 of 2017 laid down in no uncertain terms that the low age of the rape victim is not considered as the only or sufficient factor for imposing a death sentence. It must be apprised here that the Bench of Apex Court comprising of Justices L Nageswara Rao, Sanjiv Khanna and BR Gavai observed so while tilting the scales in favour of commuting the death sentence awarded to Irappa Siddappa Murgannavar. Irappa was found guilty of having subjected a five year old girl R to rape, killed her by strangulation and then disposed of her body, tied in a gunny bag, into the stream named Bennihalla.

No doubt, the Apex Court has attributed a couple of analytical reasons for not awarding death penalty in this case which at first glance makes it appear that death penalty should have been awarded but when we dig deeper then we find that the reasons attributed by Apex Court for not awarding death penalty are adequate like appellant having no criminal antecedents, nor was any evidence presented to prove that the commission of the offence was pre-planned. In addition, the Apex Court noted that there is no material shown by the State to indicate that the appellant cannot be reformed and is a continuing threat to the society. His conduct in jail was also satisfactory. Furthermore, the young age of the appellant at the time of commission of the offence (23/25 years), his weak socio-economic background, absence of any criminal antecedents, non pre-meditated nature of the crime and the fact that he has spent nearly 10 years 10 months in prison have weighed with us as other extenuating factors, which add up against imposition of death penalty which is to be inflicted only in rarest of the rare cases. In addition, the State has not shown anything to prove the likelihood that the appellant would commit acts of violence as a continuing threat to society; per contra, his conduct in the prison has been described as satisfactory.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Sanjiv Khanna for a three-Judge Bench of Apex Court comprising of himself, Justice L Nageswara Rao and Justice BR Gavai sets the ball rolling by first and foremost observing in para 1 that, “The judgment under challenge, passed by the High Court of Karnataka at Dharwad on 6th March 2017, affirms the conviction of the appellant – Irappa Siddappa Murgannavar – under Sections 302, 376, 364, 366A, and 201 of the Indian Penal Code, 1860 (for short, ‘the Code’); and confirms the sentence of death for the offence under Section 302, rigorous imprisonment for life for the offence under Section 376, rigorous imprisonment for six years and a fine of Rs.10,000/- with default stipulation for the offences under Sections 364 and 366A each, and rigorous imprisonment for two years and a fine of Rs.2,000/- with default stipulation for the offence under Section 201 of the Code. The sentences under Sections 376, 364, 366A, and 201 of the Code are directed to run consecutively.”

As we see, the Bench then puts forth in para 2 that, “The case of the prosecution is that the appellant subjected the deceased R to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into the stream named Bennihalla. As there are no eye witnesses to the commission of the offences, in order to prove these postulations, the prosecution has relied on three-fold circumstances: (i) that the appellant took away R from a neighbour’s house on 28th December 2010; (ii) that the appellant was last seen by certain witnesses carrying R and a gunny bag towards the Bennihalla stream; and (iii) that based on the disclosure statement of the appellant on 1st January 2011, the dead body of R was recovered in a gunny bag from Bennihalla.”

To put things in perspective, the Bench then envisages in para 3 that, “R, a girl aged 5 years and 2 months, was living with her maternal grandfather Rangappa in village Khanapur, Taluka Nargund, District Gadag, Karnataka while her parents worked in Mangalore, Karanataka. Rangappa’s neighbours Venkavva Patil (PW-5) and her nephew Ajit Patil (PW-6) have testified that on 28th December 2010 at about 6:30 pm, R had come to their house to watch TV. At about 6:30 pm the appellant had also come to their house. He was talking to R and took her with him on the pretext of buying her biscuits. Hanamappa (PW-4), who is the brother of Rangappa, testified that R did not return that night, and in spite of frantic efforts, she could not be traced. The next day, he enquired at Venkavva Patil’s (PW-5) house about R’s whereabouts, where he was informed that the appellant had taken R with him. Hanamappa (PW-4) lodged a missing person report re R at Nargund Police Station on 29th December 2010 (Exhibit P-6). This complaint states that on 28th December 2010, at 9 pm, he was informed by Mallanagowda Kagadal (PW-14) that R was missing, following which he went to his brother Rangappa’s house and learnt from his brother’s daughter, Yallavva Mangalore (PW-23), that R had gone to Venkavva Patil’s (PW-5) house at 6:30 pm to watch TV, and that he, along with other people, tried locating R but were unsuccessful. The complaint does not mention the involvement of the appellant, a fact counted on by the counsel for the appellant that will be addressed subsequently. Similarly, Yallavva Mangalore (PW-23) has testified that R had gone to her neighbour’s house at about 6:30 p.m. on 28th December 2010 to watch TV. As R did not return home, they had made enquiries with their neighbour Venkavva Patil (PW-5) who had confirmed R’s visit to her house for watching TV and that she may have gone out. Yallavva Mangalore (PW-23) had looked for R and, on being unsuccessful, informed her father and uncles. R could not be located on the said date or on 29th December 2010.”

As it turned out, the Bench then enunciates in para 4 that, “Upon learning from Hanamappa (PW-4) and Yallavva Mangalore (PW-23) that R was missing, her father Sanganabasappa (PW-1) and mother Shivaleela (PW-19) returned to Khanapur on 30th December 2010. Thereupon, extensive search for R was undertaken, but she could not be found. Sanganabasappa (PW-1) has stated that he was told by Bhimappa Talawar (PW-8), Hanamappa Talawar (PW-10) and others that they had seen the appellant carrying his daughter somewhere. He had then made a complaint at the Nargund Police Station on 1st January 2011 at 12:30 a.m. (Exhibit P-1), which we would subsequently refer to. Hanamappa (PW-4) has similarly testified that he had learnt from village residents Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar (P-10) that they had seen the appellant carrying R on his shoulder and going towards the Bennihalla stream. Thereafter, he went to the police station and informed the police about the possible involvement of the appellant. On similar lines, Venkavva Patil (PW-5) has deposed that she learnt from the police that Yallappagouda Kagadal (PW7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar (P-10) had seen the appellant carrying a gunny bag and the deceased R, walking towards the stream. These evidences, further elaborated below, have been adduced by the prosecution to establish that the appellant was seen carrying R and a gunny bag and walking towards the stream.”

Be it noted, the Bench then observes in para 20 that, “In the context of the present case, there is no dispute that the occurrence had taken place in late December, that is, in winter. We have undertaken a check to ascertain the temperature range in the village in late December. As per data, the temperature in the month of late December in Nargund (the taluka in which Khanapur village is located) is between 19 to 29 degrees, and the temperature in water would be certainly lower. Thus, it is clear that putrefaction of the body was retarded. But the body had not floated and risen to the surface. The fact that the body was swollen and was slightly decomposed, while the skin was discoloured, would indicate that the putrefaction process had indeed started. The post mortem report and the inquest panchnama, therefore, confirm the date when the crime was committed and fully corroborate and support the ocular evidence of Sanganabasappa (PW-1), Hanamappa (PW-4), Venkavva Patil (PW-5), Ajit Patil (PW-6), Yallapagouda Kagadal (PW-7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9), Hanamappa Talawar (PW-10), Rajesab Nadaf (PW-11), Shankarappa Tadasi (PW-12), Shrinivasreddi Ramanagouda Hosamani (PW-15) and B. Vijaykumar (PW-24).”

Truth be told, the Bench then candidly concedes in para 21 that, “On an overall view of the evidence and witness statements adduced by the prosecution, the chain of circumstances affirmatively establishes the guilt of the appellant. Though the counsel for the appellant has painstakingly sought to highlight contradictions and inconsistencies in the prosecution’s case, we believe that the same do not create a reasonable doubt in the mind of this Court. The five-fold test prescribed by Fazal Ali J. in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 are satisfied as the circumstances relied upon are fully established; they are conclusive in nature and tendency; the chain of evidence is so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the appellant; the facts established are consistent only with the hypothesis of the guilt of the accused and exclude every hypothesis except the one proved. The decision of the High Court as well as the District and Sessions Court convicting the appellant for rape and murder of R etc., thus, is upheld.”

Of course, the Bench then hastens to add in para 23 that, “The impugned judgment reveals extensive study of case-law on part of the High Court in considering the death sentence imposed by the trial court. On an overall view of the facts and circumstances of the matter, the High Court was of the opinion that the sentence of death should be confirmed, that there were no mitigating circumstances to be found, and that there were many aggravating circumstances as the appellant was known to R, who reposed complete trust and faith in him and willingly allowed him to take her along, but she was raped and murdered in the most gruesome manner and her body was dumped into the stream. The court observed that “…when an innocent and helpless girl of 5 was subject to such a barbaric treatment by a person who was in a position of her trust, his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of an ordinary person.” The motivation of the appellant, the vulnerability of the deceased R, the enormity of the crime and the execution thereof, the Court considered the case as falling in the “rarest of the rare” category, and warranting the sentence of death to deter others from committing atrocious crimes, and to give emphatic expression to society’s abhorrence of such crimes.”

Most significantly, what forms the real cream of this extremely notable judgment is what is then stated in para 28 that, “The learned trial court has recorded that the death sentence was awarded on the ground that “the crime was committed in an extremely diabolical manner and that it was cruel, barbaric and revolting.” It has been rightly pointed out by the counsel for the appellant that the trial court merely noticed that the appellant was of young age (23 / 25 years) belonging to a very poor family, but has not considered these as mitigating factors. The High Court has noted that there are no mitigating circumstances at all. We find this observation incorrect. To begin with, it is clear that the appellant had no criminal antecedents, nor was any evidence presented to prove that the commission of the offence was pre-planned. As submitted by the counsel for the appellant, there is no material shown by the State to indicate that the appellant cannot be reformed and is a continuing threat to the society. On the contrary, it can be seen from the Death Sentence Prisoner Nominal Roll dated 17th July 2017 issued by the Chief Superintendent, Central Prison, Belgaum, that the conduct of the appellant in jail has been ‘satisfactory’. We would consider the appellant’s conduct in prison as expiation for his past deeds, also reflecting his desire to reform and take a humane turn. Furthermore, the young age of the appellant at the time of commission of the offence (23 / 25 years) [Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652], his weak socio-economic background [Mulla v. State of U.P., (2010) 3 SCC 508], absence of any criminal antecedents [Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652], non pre-meditated nature of the crime [Mohan v. State of T.N., (1998) 5 SCC 336; Akhtar v. State of UP, (1999) 6 SCC 60], and the fact that he has spent nearly 10 years 10 months in prison have weighed with us as other extenuating factors, which add up against imposition of death penalty which is to be inflicted only in rarest of the rare cases. The respondent State has not shown anything to prove the likelihood that the appellant would commit acts of violence as a continuing threat to society; per contra, his conduct in the prison has been described as satisfactory. There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat. We believe that there is hope for reformation, rehabilitation, and thus the option of imprisonment for life is certainly not foreclosed and therefore acceptable.”

As a corollary, the Bench then holds in para 29 that, “Thus, we find sufficient mitigating factors to commute the sentence of death imposed by the Sessions Court and confirmed by the High Court into imprisonment for life, with the direction that the appellant shall not be entitled to premature release/remission for the offence under Section 302 of the Code until he has undergone actual imprisonment for at least thirty (30) years. While maintaining other sentences, we direct that the sentences shall run concurrently and not consecutively. We say so as the appellant has been sentenced to imprisonment for life for the offence under section 376 of the Code, which sentence is also imposed for the offence under section 302 of the Code.”

Finally, the Bench then holds in para 30 that, “For the aforesaid reasons, we uphold the conviction of the appellant for the offences under Sections 302, 376, 364, 366A and 201 of the Code and the sentences awarded for the offences under Sections 376, 364, 366A and 201 of the Code. The appeals are, however, partly allowed by commuting the death sentence to that of life imprisonment with the stipulation that the appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 years for the offence under Section 302 of the Code and further the sentences awarded shall run concurrently and not consecutively. In view of the Constitutional Bench decision in Union of India v. V. Sriharan alias Murugan and Others, (2016) 7 SCC 1, the above direction would not affect the constitutional power of the President or Governor under Article 72 or 161 of the Constitution of India. The appeals and all pending applications are disposed of.”

All said and done, the bottom-line is: There can be no quarrel with the irrefutable fact that the Apex Court has forwarded most logical, learned and laudable arguments for not awarding the death penalty in this case as we have already discussed above in detail! It would be in the fitness of things to mention here that the Apex Court rightly took into account various factors for not awarding death sentence as it stated in para 24 that, “Challenging the order on sentence, the appellant has argued that by passing a common order on conviction and sentencing, the High Court has contravened Section 235(2) of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’) by not hearing the petitioner separately on sentencing. He has also submitted that the High Court failed to call for mitigating circumstances, that there were no aggravating circumstances, that the case does not fall into the category of ‘rarest of the rare’, that the appellant was only 25 years old who could be reformed and rehabilitated and is not likely to be a menace to the society, that the appellant has undergone a lengthy period in custody, that there is no material to suggest that the option of awarding life sentence was unquestionably foreclosed, and that death sentence should ordinarily be awarded when there is no other alternative left. In addition to the aforesaid, counsel for the appellant has also listed mitigating factors for commutation of death sentence to life imprisonment as under:

“1) The murder was not committed in pre-planned manner. Though rape on a child of 5 years is itself a grave crime, the manner of the committing the crime cannot be said to be gruesome or diabolical.

2) There is no material led by the prosecution to show that the accused cannot be reformed. The State has not brought material to show that the accused is a continuing threat to society and the option of imposing life sentence is unquestionably foreclosed.

3) Young age of the accused is a mitigating factor.

4) Lack of criminal antecedent is a mitigating factor.

5) Conduct in jail has to be considered.

6) Social economic back ground has not been considered, including poverty and lack of education.

7) Perhaps the accused, being unaware of his right to lead evidence of mitigating circumstances, did not request for time for producing material on this aspect. Though it would not vitiate the sentence, there is sufficient material before this Hon’ble Court for making a further inquiry into the mitigating circumstances.

8) The accused is in death row for last 9 years since the judgment of trial court on 08.03.2012.”

The counsel for the appellant has drawn our attention to a certificate issued by the Gandhi Research Foundation, Jalgaon which states that the appellant had participated in the ‘Gandhi Vichar Sanskar Pariksha’ 2017-18 organised by the Gandhi Research Foundation, Jalgaon. It appears from the website of the Foundation that it conducts a country-wide examination called “GVSP (Gandhian Values for Sustainable Peace – Gandhi Vichar Sanskar Pariksha) to inculcate among the young generation the art of nonviolence in daily life.” Another certificate dated 22nd December 2016 issued by the Yogavidya Gurukul, a research institute recognised by Pune University, states that the appellant has successfully completed the course Yoga Pravesh. We have also taken on record the letter dated 4th September 2021 from Medical Officer, Central Prison Hospital, Belagavi addressed to an advocate, stating that the appellant has been diagnosed with Oral Generalised Sub-Mucosal Fibrosis which is in premalignant condition.” Absolutely right!

Sanjeev Sirohi

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